RYA ZOBEL, District Judge
Plaintiff Fred Davis received a ticket for a parking violation, which required him to pay a $30 fine. Sometime thereafter, he attended an administrative hearing to contest the ticket, but was unsuccessful. He subsequently paid the ticket, albeit "under duress," and was then erroneously sent an overdue notice. He has now filed suit against the City of Everett ("the City"); the City's Mayor, David Ragucci; the Parking Clerk, Paul F. Kelly; and Florence Molliver, another employee of the City. He contends that he was deprived of the right to face his accuser and the right to a fair hearing. He seeks damages of $400,000 from each of the four defendants. Defendants move to dismiss the complaint under Fed.R.Civ.P. 12(b)(6). In deciding a Rule 12(b)(6) motion, I accept as true the factual allegations contained in the complaint, construe them in the light most favorable to the plaintiff, and then determine whether the complaint reveals any set of facts under which plaintiff would be entitled to relief.See Gooley v. Mobil Oil Corp., 851 F.2d 513, 514 (1st Cir. 1988). The motion is allowed.
Plaintiff contends he was denied his Sixth Amendment right to confront his accuser during the administrative hearing on his parking ticket. As defendants point out, however, the Confrontation Clause applies only to criminal prosecutions. See Hannah v. Larche, 363 U.S. 420, 440 n. 16 (1960). The hearing on plaintiff's municipal parking ticket was not criminal in nature, and thus the Confrontation Clause does not apply. See LeMaine v. City of Boston, 27 Mass. App. Ct. 1173, 1174 (1989). Plaintiff also contends that although he received a hearing, he was denied a fair hearing, as guaranteed by the Due Process Clause of the Fourteenth Amendment. Even assuming that plaintiff was deprived of a cognizable property interest, and even assuming that the hearing was not "fair" — both of which are dubious propositions — the constitutional violation is not actionable "unless and until the State fails to provide due process."Zinermon v. Burch, 494 U.S. 113, 126 (1990). No Due Process violation may be found without first examining "what process the State provided," including "any remedies for erroneous deprivations." Id. In Massachusetts, a person aggrieved by a decision on a parking ticket has well-established avenues of appeal. See M.G.L. c. 30A, § 14; id. c. 249, § 4. The complaint nowhere alleges that plaintiff pursued such post-deprivation relief. As the First Circuit has noted, it "makes no sense" for plaintiff to ignore state-provided post-deprivation remedies and to "then create a federal case" out of the alleged deprivation. See Herwins v. City of Revere, 163 F.3d 15, 20 (1st Cir. 1998).
Although it does not appear as a pending motion on the court's docket, one final matter remains. On January 17, 2006, plaintiff filed a "Notice of Default," alleging that defendants were served with the complaint on December 23, 2005, and failed to answer within the allowed time. (Docket #9). Under Fed.R.Civ.P. 12(a)(1), however, defendants had until January 12, 2006, to file a responsive pleading. By filing a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) on that date, defendants tolled the time for serving a responsive pleading. Accordingly, plaintiff's request for entry of default against defendants is denied.
Defendants' motion to dismiss (Docket #6) is allowed. Plaintiff's request for entry of default (#9) is denied. Defendants' motion to strike (#13) is denied as moot.
Judgment may be entered dismissing the complaint.